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EXHIBIT 1.1
EXECUTION COPY
BIOPURE CORPORATION
Up to 22,200,000 Shares
Common Stock
($0.01 Par Value)
AGENCY AGREEMENT
January 4, 2005
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EXECUTION COPY
AGENCY AGREEMENT
January 4, 2005
C.E. Unterberg, Towbin, LLC,
as Agent
350 Madison Avenue
New York, NY 10017
Ladies and Gentlemen:
Biopure
Corporation, a Delaware corporation (the "Company"), proposes,
upon the terms and subject to the
conditions set forth in this Agreement
(together with the exhibits attached hereto
(the "Agreement") to offer for sale
to the public pursuant to a "best efforts"
underwritten offering (the
"Offering") up to 22,200,000 shares of
Class A Common Stock, $.01 par value per
share (the "Common Stock"), of the Company,
each with one associated preferred
stock purchase (a "Right") as described in
the Rights Agreement defined below
(such 22,200,000 shares of Common Stock
together with such Rights, the
"Shares"). In connection with the Offering,
the Company desires to engage C.E.
Unterberg, Towbin, LLC as its exclusive
agent (the "Agent") to offer the Shares
to the public on a reasonable "best
efforts" basis, upon the terms and subject
to the conditions set forth in this
Agreement. The Shares and the Offering are
described in the Prospectus that is
referred to below.
The
Company has prepared and filed, in accordance with the provisions
of
the Securities Act of 1933, as amended, and
the rules and regulations thereunder
(collectively, the "Act"), with the
Securities and Exchange Commission (the
"Commission") a registration statement
under the Act on Form S-3 (File No.
333-114559) filed with the Commission on
April 16, 2004, and amendment No. 1 to
such registration statement filed with the
Commission on November 16, 2004 (such
registration statement as amended or
supplemented (other than supplements
relating to offerings of securities other
than the Offering) from time to time,
the "registration statement"). The
registration statement has been declared by
the Commission to be effective under the
Act. The Company will file with the
Commission pursuant to Rule 424(b) under
the Act a final prospectus supplement
to the Basic Prospectus (as defined below),
describing the Shares and the
offering thereof, in such form as has been
provided to or discussed with, and
approved, by the Agent.
The term
"Registration Statement" as used in this Agreement means the
registration statement, at the time it
became effective and as supplemented
(other than supplements relating to
offerings of securities other than the
Offering) or amended, including (i) all
financial schedules and exhibits
thereto, and (ii) all documents
incorporated by reference or deemed to be
incorporated by reference therein, which
schedules, exhibits and documents have
been filed with the Commission pursuant to
its Electronic Data Gathering
Analysis and Retrieval System ("EDGAR").
The term "Basic Prospectus" as used in
this Agreement means the basic prospectus
dated November 18, 2004 in the same
form as the basic prospectus included in
the Registration Statement and filed
with the Commission on November 16, 2004
for use in connection with the offer
and/or sale of the Shares pursuant to this
Agreement. "Preliminary Prospectus
Supplement" shall mean any preliminary
prospectus supplement to the Basic
Prospectus which describes the Shares and
the Offering and is used prior to
filing of the Prospectus
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Supplement, together with the Basic
Prospectus. The term "Prospectus Supplement"
as used in this Agreement means any final
prospectus supplement specifically
relating to the Shares, in the form filed
with, or transmitted for filing to,
the Commission pursuant to Rule 424 under
the Act. The term "Prospectus" as used
in this Agreement means the Basic
Prospectus as supplemented by the Prospectus
Supplement except that if such Basic
Prospectus is amended or supplemented
(other than supplements relating to
offerings of securities other than the
Offering) on or prior to the date on which
the Prospectus Supplement was first
filed pursuant to Rule 424, the term
"Prospectus" shall refer to the Basic
Prospectus as so amended or supplemented
and as supplemented by the Prospectus
Supplement. Any reference herein to the
registration statement, the Registration
Statement, the Basic Prospectus, any
Preliminary Prospectus Supplement, any
Prospectus Supplement or the Prospectus
shall be deemed to refer to and include
(i) the documents incorporated by reference
therein pursuant to Form S-3 (the
"Incorporated Documents") and (ii) the copy
of the Registration Statement, the
Basic Prospectus, the Prospectus
Supplement, the Prospectus or the Incorporated
Documents filed with the Commission
pursuant to EDGAR. Any reference herein to
the terms "amend," "amendment" or
"supplement" with respect to the Registration
Statement, the Basic Prospectus, the
Preliminary Prospectus Supplement, the
Prospectus Supplement or the Prospectus
shall be deemed to refer to and include
the filing of any document under the
Securities Exchange Act of 1934, as
amended, and the rules and regulations
thereunder (collectively, the "Exchange
Act") after the effective date of the
Registration Statement, or the date of the
Basic Prospectus, the Preliminary
Prospectus Supplement or the Prospectus
Supplement, as the case may be, deemed to
be incorporated therein by reference.
As used herein, "business day" shall mean a
day on which the New York Stock
Exchange is open for trading.
The
Company hereby confirms its agreement with the Agent as
follows:
1.
Agreement to Act as Agent. Upon the basis of the representations
and
warranties of the Company and subject to
the terms and conditions set forth in
this Agreement and in the letter agreement
dated December 2, 2004 between the
Company and the Agent (the "Engagement
Letter"), the Company engages the Agent
to act as its exclusive agent, on a
reasonable "best efforts" basis, in
connection with the offer and sale by the
Company of the Shares. As compensation
for services rendered, at the time of
purchase (as defined below), the Company
shall pay to the Agent by Federal Funds
wire transfer to an account or accounts
designated by the Agent, an amount equal to
6.5% of the gross proceeds received
by the Company from the sale of the Shares
in the Offering. In addition, at the
time of purchase (as defined below) the
Company will issue to the Agent a
warrant (the "Agent's Warrant"), in the
form of Exhibit A attached hereto, to
purchase up to the number of shares of
Common Stock (and associated Rights)
equal to three percent (3%) of the
aggregate number of Shares sold to Purchasers
(as defined below) in the Offering, but not
exceeding 500,000. The shares of
Common Stock (and associated Rights)
issuable to the Agent upon exercise of the
Agent's Warrant are referred to herein as
the "Warrant Stock." The Shares are
being offered and sold at a price of $0.51
per share of Common Stock.
This
Agreement shall not give rise to any commitment by the Agent or
any
of its affiliates to underwrite or purchase
any of the Shares or otherwise
provide any financing. Subscription for
Shares shall be evidenced by, and the
sale of such Shares shall be made pursuant
to, purchase agreements in
substantially the form included as Exhibit
B hereto duly executed by each
purchaser of the Shares and the Company
(the "Purchase Agreements"). Persons who
agree to purchase Shares pursuant to
the
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Purchase Agreements that are accepted by
the Company are hereinafter referred to
as the "Purchasers."
2. Payment
and Delivery. Subject to the terms and conditions hereof and of
the Purchase Agreements, payment of the
purchase price for, and delivery of
certificates for, the Shares for which the
Company has received Purchase
Agreements acceptable to the Company shall
be made at the office of Ropes & Gray
LLP, One International Place, Boston,
Massachusetts (or at such other place as
shall be agreed upon by the Agent and the
Company), at 10:00 A.M., New York City
time, on or about January 10, 2005 (unless
another time shall be agreed to by
the Agent and the Company). Subject to the
terms and conditions hereof and of
the Purchase Agreements, payment of the
purchase price for the Shares purchased
by a Purchaser shall be made to the Company
at the time of purchase by such
Purchaser directly (or indirectly from the
escrow account maintained by the
Agent) by Federal Funds wire transfer of
same day funds, against delivery of
certificates for the Shares, through the
facilities of The Depository Trust
Company ("DTC"), and such Shares shall be
registered in such name or names and
shall be in such denominations, as the
Purchaser thereof may request at least
one business day before the time of
purchase (as defined below). The Agent
agrees to hold the purchase price delivered
to it by persons who agree to
purchase Shares in escrow as contemplated
by the form of purchase agreement
included as Exhibit B hereto. Subject to
the terms and conditions hereof and of
the Purchase Agreements, at the time of
purchase the Agent shall deliver to the
Company by Federal Funds wire transfer of
same day funds the purchase price for
any such Shares payable to the Company that
has been deposited in the escrow
account by the Purchasers, against delivery
of such Shares to the Purchasers.
The time at which such payment and delivery
are made is hereinafter sometimes
called "the time of purchase" and the date
upon which the time of purchase
occurs is hereinafter sometimes called the
"Closing Date." The Agent will, upon
request of the Company, confirm to the
Company the aggregate amount of funds
delivered to it in escrow by persons who
have executed and delivered a Purchase
Agreement.
Deliveries
of the documents described in Section 5 hereof with respect to
the purchase of the Shares shall be made at
the offices of Ropes & Gray LLP, One
International Place, Boston, Massachusetts
at 10:00 A.M., New York City time, on
the date of the closing of the purchase of
the Shares.
3.
Representations and Warranties of the Company. The Company
represents,
warrants and covenants to and agrees with
the Agent that:
(a) the Registration Statement was declared effective under the
Act
on
November 18, 2004; no stop order of the Commission preventing
or
suspending
the use of the Basic Prospectus, any Preliminary Prospectus
Supplement, the Prospectus Supplement or the Prospectus or the
effectiveness of the Registration Statement has been issued and
no
proceedings for such purpose have been instituted or, to the
Company's
knowledge,
are threatened by the Commission; the Company is eligible to
use Form
S-3 for the Offering; such Registration Statement at the date
of
this
Agreement meets, and the Offering complies with, the requirements
of
Rule 415
under the Act. The Registration Statement complied when it
became
effective,
complies, and will comply at the time of purchase, and the
Prospectus
conformed as of its date, conforms, and will conform at the
time of
purchase, in each case in all material respects with the
requirements of the Act; any statutes, regulations, contracts or
other
documents
that are required
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to be
described in the Registration Statement or the Prospectus or to
be
filed as
exhibits to the Registration Statement have been and will be so
described
or filed; there are no documents required to be filed with the
Commission
in connection with the transaction contemplated hereby that
have not
been filed as required pursuant to the Act or will not be filed
within the
requisite time period; and the Registration Statement did not
at the
time of effectiveness, does not and will not at the time of
purchase
contain an untrue statement of a material fact or omit to state
a
material
fact required to be stated therein or necessary to make the
statements
therein not misleading, and the Prospectus did not as of its
date, does
not and will not at the time of purchase contain an untrue
statement
of a material fact or omit to state a material fact required to
be stated therein or
necessary to make the statements therein, in light of
the
circumstances under which they were made, not misleading;
provided,
however,
that the Company makes no warranty or representation with
respect
to any
statement contained in the Registration Statement or the
Prospectus
in
reliance upon and in conformity with information concerning the
Agent
and
furnished in writing by or on behalf of the Agent to the
Company
expressly
for use in the Registration Statement or the Prospectus; the
Company
has not distributed and will not distribute any offering
material
in
connection with the offering or sale of the Shares other than
the
Registration Statement, the then most recent Preliminary
Prospectus
Supplement
or Prospectus Supplement, as applicable, the Basic Prospectus
and the
Prospectus; the Company has timely filed all reports required
of
it to be
filed pursuant to the Act and the Exchange Act and has filed
all
such
reports in the manner prescribed thereby; the Incorporated
Documents,
when they
were filed with the Commission, conformed in all material
respects
to the requirements of the Exchange Act and the applicable
rules
and
regulations of the Commission thereunder, and none of such
documents,
when they
were filed with the Commission, contained any untrue statement
of a
material fact or omitted to state a material fact necessary to
make
the
statements, in light of the circumstances under which they were
made,
therein
not misleading; and any further documents so filed and
incorporated by reference in the Basic Prospectus or Prospectus
Supplement, when such documents are filed with the Commission, will
comply
in all material
respects with the requirements of the Exchange Act and the
applicable
rules and regulations of the Commission thereunder, as
applicable, and will not contain any untrue statement of a material
fact
or omit to
state a material fact necessary to make the statements therein,
in light
of the circumstances under which they were made, not
misleading.
(b) as of the date of the Prospectus Supplement the Company has,
and
as of the
time of purchase the Company shall have, an authorized
capitalization as set forth in the Prospectus under the caption
"Description of Capital Stock"; all of the issued and outstanding
shares
of capital
stock, including the Common Stock, of the Company have been
duly
authorized and validly issued and are fully paid and
non-assessable,
have been
issued in compliance with all federal and state securities laws
and were
not issued in violation of any preemptive right, resale right,
right of
first refusal or similar right;
(c) as of December 31, 2004 there were 111,001,982 shares of
Common
Stock
outstanding and the Company had reserved an aggregate of
43,017,035
shares of
Common Stock for issuance upon exercise of outstanding stock
options
and warrants and for conversion of the Company's outstanding
Class
B common
stock, in each case as described in the Prospectus;
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since
December 31, 2004, the Company has not issued any securities
other
than
Common Stock of the Company pursuant to the exercise of
previously
outstanding options in connection with the Company's employee
stock
purchase
and option plans (the "Plans"), options granted pursuant to the
Plans in
the ordinary course of business consistent with past practice
and
Common
Stock issued pursuant to the exercise of previously outstanding
warrants,
in each case as disclosed in the Prospectus; there are no
authorized
or outstanding options, warrants, preemptive rights, resale
rights,
rights of first refusal or other rights to purchase, or equity
or
debt
securities convertible into or exchangeable or exercisable for,
any
capital
stock or other securities of the Company other than pursuant to
the
Purchase Agreements and this Agreement and those described in
the
Prospectus; the description of the Company's stock option, stock
bonus and
other
stock plans or arrangements, and the options, warrants or other
rights
granted thereunder, set forth in the Registration Statement and
the
Prospectus
accurately and fairly presents the information required by the
Act to be
disclosed therein with respect to such plans, arrangements,
options
and rights; the Rights are not now and never have been
transferable separately from the shares of Common Stock or
exercisable; no
person,
including any of the Company's stockholders at the time of the
issuance
of the Rights, has to the knowledge of the Company at any time
been an
Acquiring Person and no Distribution Date or Shares Acquisition
Date has
occurred or been proposed; the execution of this Agreement and
the
Agent's Warrant and the completion of the transactions
contemplated
hereby and
thereby, including the acquisition of the Shares, the Agent's
Warrant or
the Warrant Stock will not cause: (i) to the knowledge of the
Company,
assuming the accuracy of the representations and warranties of
the
Purchasers made in the Purchase Agreements, any Purchaser or the
Agent
to become
an Acquiring Person, or (ii) a Distribution Date or a Shares
Acquisition Date to occur; the Rights Agreement dated as of
September 24,
1999
between the Company and American Stock Transfer & Trust
Company, as
rights
agent, (the "Rights Agreement") was duly authorized, executed
and
delivered
by the Company effective as of September 24, 1999; there have
been no
amendments to the Rights Agreement; as used in this section the
following
terms have the meanings given to them in the Rights Agreement:
"Acquiring
Person", "Distribution Date" and "Shares Acquisition Date";
(d) the Company has been duly incorporated and is validly
existing
as a
corporation in good standing under the laws of the State of
Delaware,
with full
corporate power and authority to own, lease and operate its
properties
and conduct its business as described in the Registration
Statement
and the Prospectus, to execute and deliver this Agreement and
to
issue,
sell and deliver the Shares as contemplated herein; no
governmental
proceeding
has been instituted in the State of Delaware revoking, limiting
or
curtailing, or seeking to revoke, limit or curtail, such power
and
authority.
(e) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where
the
ownership
or leasing of its properties or the conduct of its business
requires
such qualification, except where the failure to be so qualified
and in
good standing would not, individually or in the aggregate, have
a
material
adverse effect on the business, properties, management,
condition,
financial or otherwise, operations, prospects or results of
operation
of the Company and the Subsidiaries (as hereinafter defined)
taken as a
whole (a "Material Adverse Effect"); no governmental proceeding
has been
instituted
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in any
such jurisdiction, revoking, limiting or curtailing, or seeking
to
revoke,
limit or curtail, such qualification, except for such
proceedings
as would
not, individually or in the aggregate, have a Material Adverse
Effect.
(f) The Company has no subsidiaries (as defined in the Act)
other
than
NeuroBlok, Inc. ("NeuroBlok"), DeNovo Technologies Corp.,
Biopure
Netherlands BV, Biopure South Africa, Ltd., Biopure Overseas
Holding
Company
and Reperfusion Systems, Inc. (collectively, the
"Subsidiaries"),
it being
acknowledged for the avoidance of doubt that Eleven Hurley
Street
Associates
is not such a subsidiary; except as disclosed in the
Registration Statement or the Prospectus, the Company owns all of
the
issued and
outstanding capital stock of each of the Subsidiaries other
than
NeuroBlok; none of the subsidiaries is a "significant
subsidiary"
within the
meaning of rule 1-02(w) of Regulation S-X or is otherwise
material
to the business or operations of the Company; the Company owns
shares of
NeuroBlok capital stock representing not less than 60% of
NeuroBlok's issued and outstanding shares of capital stock and not
less
than 60%
of the voting power of NeuroBlok's issued and outstanding
capital
stock;
other than the capital stock of the Subsidiaries and except as
disclosed
in the Registration Statement or the Prospectus, the Company
does not
own, directly or indirectly, any shares of stock or any other
equity or
long-term debt securities of any corporation or have any equity
interest
in any firm, partnership, joint venture, association or other
entity;
complete and correct copies of the certificate of incorporation
and the
bylaws of the Company and the Subsidiaries and all amendments
thereto
have been delivered to the Agent, and no changes therein will
be
made
subsequent to the date hereof and prior to the time of purchase;
each
Subsidiary
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its
incorporation, with full corporate power and authority to own,
lease and
operate
its properties and to conduct its business as described in the
Registration Statement or the Prospectus; each Subsidiary is
duly
qualified
to do business as a foreign corporation and is in good standing
in each
jurisdiction where the ownership or leasing of its properties
or
the
conduct of its business requires such qualification, except where
the
failure to
be so qualified and in good standing would not, individually or
in the
aggregate, have a Material Adverse Effect; no proceeding has
been
instituted
in any such jurisdiction, revoking, limiting or curtailing, or
seeking to
revoke, limit or curtail, such power and authority or
qualification, except for any such proceedings as would not,
individually
or in the
aggregate, have a Material Adverse Effect; all of the
outstanding shares of capital stock of each of the Subsidiaries
held by
the
Company have been duly authorized and validly issued, are fully
paid
and
non-assessable and are owned by the Company subject to no
security
interest,
other encumbrance or adverse claims except as disclosed in the
Registration Statement or the Prospectus, and no options, warrants
or
other
rights to purchase, agreements or other obligations to issue or
other
rights to convert any obligation into shares of capital stock
or
ownership
interests in the Subsidiaries are outstanding except as
disclosed
in the Registration Statement or the Prospectus;
(g) [INTENTIONALLY OMITTED]
(h) the Shares have been duly and validly authorized by the
Company
and, when
the Shares are issued and delivered against payment therefor as
provided
herein, the Shares will be duly and validly issued, fully paid
and
non-assessable and will not be issued in violation
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of
statutory and contractual preemptive rights, resale rights, rights
of
first
refusal and similar rights; the Agent's Warrant has been duly
and
validly
authorized by the Company and upon delivery to the Agent at the
time of
purchase will be duly issued and will constitute a legal, valid
and
binding obligation of the Company, enforceable against the Company
in
accordance
with its terms. The Warrant Stock has been duly authorized and
reserved
for issuance upon the exercise of the Agent's Warrant and when
issued
upon payment of the exercise price therefor will be validly
issued,
fully paid
and nonassessable.
(i) the Common Stock (including the Shares) conforms in all
material
respects
to the description thereof contained in the Registration
Statement
or the Prospectus, the certificates for the Shares are in due
and proper
form and the holders of the Shares will not be subject to
personal
liability under Delaware corporate law by reason of being such
holders;
(j) this Agreement has been duly authorized, executed and
delivered
by the
Company;
(k) except as disclosed in the Registration Statement or the
Prospectus, neither the Company nor any of the Subsidiaries is in
breach
or
violation of or in default under (nor has any event occurred which
with
notice,
lapse of time or both would result in any breach or violation
of,
constitute
a default under or give the holder of any indebtedness (or a
person
acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a part of such
indebtedness
under) (i)
its respective certificate of incorporation or bylaws, (ii) any
law,
order, rule, regulation, writ, injunction, judgment or decree of
any
court,
government or governmental agency or body, domestic or foreign,
having
jurisdiction over the Company or any of its Subsidiaries or
over
their
respective properties, or (iii) any indenture, mortgage, deed
of
trust,
bank loan or credit agreement or other evidence of indebtedness,
or
any
license, lease, contract or other agreement or instrument to which
the
Company or
any of the Subsidiaries is a party or by which any of them or
any of
their properties is bound, except in the case of clause (ii)
and
(iii)
above where such breach, violation or default would not,
individually or in the aggregate, have a Material Adverse Effect
and in
the case
of clause (i) above for such breaches, violations or defaults
with respect to the certificate of
incorporation or bylaws of Subsidiaries
of the
Company as would not, individually or in the aggregate, have a
Material
Adverse Effect;
(l) the execution, delivery and performance of this Agreement
and
the
Agent's Warrant, and the consummation of the transactions
contemplated
hereby and
thereby, including the issuance and sale of the Shares, the
Agent's
Warrant and the Warrant Stock will not conflict with, result in
any breach
or violation of or constitute a default under (nor constitute
any event
which with notice, lapse of time or both would result in any
breach or
violation of or constitute a default under or give the holder
of
any
indebtedness (or a person acting on such holder's behalf) the right
to
require
the repurchase, redemption or repayment of all or a part of
such
indebtedness under) (i) the certificate of incorporation or bylaws
of the
Company or
any of the Subsidiaries, (ii) any indenture, mortgage, deed of
trust,
bank loan or credit agreement or other evidence of indebtedness,
or
any
license, lease, contract or other agreement or instrument to which
the
Company or
any of the Subsidiaries is a party or by which any of them or
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any of
their respective properties is bound, or (iii) any federal,
state,
local or
foreign statute, law, regulation or rule or any decree,
judgment
or order
applicable to the Company or any of the Subsidiaries or any of
their
respect properties, except where such breach, violation or
default
would not,
individually or in the aggregate, have a Material Adverse
Effect;
(m) the Common Stock (including the Shares) is registered under
the
Exchange
Act and the outstanding shares of Common Stock of the Company
are
quoted on
The Nasdaq Stock Market ("Nasdaq") and the Company has taken no
action
designed to, or likely to have the effect of terminating the
registration of the Common Stock under the Exchange Act or
delisting or
suspending
from trading the Shares from Nasdaq, nor has the Company
received
any information suggesting that the Commission or (except as
disclosed
in the Prospectus) Nasdaq is contemplating terminating or
suspending
such registration or listing. All of the shares of Common Stock
included
in, or issuable upon exercise or conversion of, the Shares and
the
Agent's Warrant were described in a "Notification Form for Listing
of
Additional
Shares" filed with Nasdaq. The Company has complied with the
requirements of Rule 4350(i)(2) of the Nasdaq Marketplace Rules
in
connection
with the Offering;
(n) no approval, authorization, consent or order of or filing
with
any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency or of or with Nasdaq,
or
approval
of the shareholders of the Company, is required in connection
with the
issuance and sale of the Shares or the consummation by the
Company of
the transactions contemplated hereby other than registration
under the
Act of the offer and sale of the Shares and filings with
Nasdaq,
each of
which has been effected, and any necessary qualification under
the
securities
or blue sky laws of the various jurisdictions in which Shares
are being
offered or under the rules and regulations of the National
Association of Securities Dealers, Inc.;
(o) except as disclosed in the Registration Statement or the
Prospectus, (i) no person has the right, contractual or otherwise,
to
cause the
Company to issue or sell to it any shares of Common Stock or
shares of
any other capital stock or other equity interests of the
Company,
and (ii) except as provided herein or in the Engagement Letter,
no person
has the right to act as an underwriter, placement agent or
financial
advisor to the Company in connection with the offer and sale of
the
Shares, in the case of each of the foregoing clauses (i), (ii)
and
(iii),
whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated
thereby
or
otherwise; except as disclosed in the Registration Statement or
the
Prospectus, and except for shares of Common Stock underlying
warrants
previously
issued to placement agents and entitling such placement agents
to
purchase an aggregate of 59,000 shares of Common Stock at
exercise
prices in
excess of $3.00 per share of Common Stock, none of which
warrants
have been exercised as of the date hereof, no person has the
right,
contractual or otherwise, to cause the Company to register
under
the Act
any shares of Common Stock or shares of any other capital stock
or
other
securities of the Company, or to include any such shares or
interests
in the Registration Statement or the Offering, whether as a
result of
the filing or effectiveness of the Registration Statement or
the
sale of
the Shares as contemplated thereby or otherwise;
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(p) each of the Company and the Subsidiaries has all necessary
licenses,
authorizations, consents and approvals and has made all
necessary
filings required under any federal, state, local or foreign
law,
regulation
or rule, in order to conduct its respective business as
currently
conducted and has conducted such business in accordance with
such laws,
regulations and rules, except where the failure to have such
licenses,
authorizations, consents and approvals or the failure to
conduct
business
in accordance with such laws, rules and regulations would not,
individually or in the aggregate, have a Material Adverse Effect;
neither
the
Company nor any of the Subsidiaries is in violation of, or in
default
under, or
has received notice of any proceedings relating to revocation
or
modification of, any such license, authorization, consent or
approval or
any
federal, state, local or foreign law, regulation or rule or any
decree,
order or judgment applicable to the Company or any of such
Subsidiaries, except where such violation, default, revocation
or
modification would not, individually or in the aggregate, have a
Material
Adverse
Effect;
(q) all legal or governmental proceedings, affiliate
transactions,
contracts,
licenses, agreements, leases or documents of a character
required
to be described in the Registration Statement or the Prospectus
or to be
filed as an exhibit to the Registration Statement have been so
described
or filed as required;
(r) except as disclosed in the Registration Statement or the
Prospectus, there are no actions, suits, claims, investigations
or
proceedings pending or, to the Company's knowledge, threatened to
which
the Company or any of the
Subsidiaries or any of their respective
directors
or officers is or would be a party or of which any of their
respective
properties is or would be subject at law or in equity, before
or by any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, except any such
action,
suit,
claim, investigation or proceeding which would not result in a
judgment,
decree or order having, individually or in the aggregate, a
Material
Adverse Effect or prevent consummation of the transactions
contemplated hereby;
(s) Ernst & Young LLP, whose report on the consolidated
financial
statements
of the Company and the Subsidiaries is filed with the
Commission
as part of the Registration Statement and the Prospectus, are
independent public accountants as required by the Act and the
Exchange
Act;
(t) the consolidated financial statements included in the
Registration Statement or the Prospectus, together with the related
notes
and
schedules, present fairly in all material respects the
consolidated
financial
position of the Company and the consolidated Subsidiaries as of
the dates
indicated and the consolidated results of operations and cash
flows of
the Company and the consolidated Subsidiaries for the periods
specified
and comply in all material respects with the requirements of
the
Act and
have been prepared in conformity with generally accepted
accounting
principles applied on a consistent basis during the periods
involved
except as set forth in the notes thereto and subject, in the
case
of
unaudited financial statements, to normal year-end adjustments,
which
are not
expected to be material in amount; any pro forma financial
statements
or data included in the Registration Statement or the
Prospectus
comply with the requirements of Regulation S-X of the Act, the
assumptions used in the
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preparation of such pro forma financial statements and data are
reasonable, the pro forma adjustments used therein are appropriate
to give
effect to
the transactions or circumstances described therein and the pro
forma
adjustments have been properly applied to the historical amounts
in
the
compilation of those statements and data; the supporting exhibits
and
schedules
in the Registration Statement, if any, present fairly in all
material
respects the information required to be stated therein; the
other
financial
and statistical data set forth in the Registration Statement or
the
Prospectus are accurately presented and prepared on a basis
consistent
with the financial statements and
books and records of the Company; there
are no
financial statements (historical or pro forma) or supporting
schedules
or exhibits that are required to be included in the
Registration
Statement
or the Prospectus that are not included as required; and the
Company
and the consolidated Subsidiaries do not have any material
liabilities or obligations, direct or contingent (including any
off-balance sheet obligations), not disclosed in the
Registration
Statement
or the Prospectus;
(u) except as set forth in the Registration Statement or the
Prospectus, subsequent to the respective dates as of which
information is
given in
the Registration Statement and the Prospectus, there has not
been
(i) any
material adverse change, or any development involving a
prospective material adverse change, in the business,
properties,
management, condition, financial or otherwise, operations,
prospects or
results of
operation of the Company and the Subsidiaries taken as a whole,
(ii) any
transaction which is material to the Company and the
Subsidiaries
taken as a
whole, (iii) any obligation, direct or contingent (including
any
off-balance sheet obligations), incurred by the Company or the
Subsidiaries, which is material to the Company and the Subsidiaries
taken
as a
whole, (iv) any change in the capital stock (other than pursuant
to
the
exercise or conversion of outstanding stock options or warrants
described
in the Prospectus) or any material change in the outstanding
indebtedness of the Company or the Subsidiaries or (v) any dividend
or
distribution of any kind declared, paid or made on any class of
capital
stock of the
Company;
(v) neither the Company nor any of the Subsidiaries is nor,
after
giving
effect to the Offering as described in the Prospectus, will any
of
them be an
"investment company" or an entity "controlled" by an
"investment
company," as such terms are defined in the Investment Company
Act of
1940, as amended (the "Investment Company Act");
(w) the Company and any "employee benefit plan" (as defined
under
the
Employee Retirement Income Security Act of 1974, as amended, and
the
regulations and published interpretations thereunder
(collectively,
"ERISA"))
established or maintained by the Company or its "ERISA
Affiliates" (as defined below) are in compliance in all material
respects
with
ERISA; "ERISA Affiliate" means, with respect to the Company,
any
member of
any group of organizations described in Sections 414(b), (c),
(m) or (o)
of the Internal Revenue Code of 1986, as amended, and the
regulations and published interpretations thereunder (the "Code")
of which
the
Company is a member; no "reportable event" (as defined under
ERISA)
has
occurred or is reasonably expected to occur with respect to any
"employee
benefit plan" established or maintained by the Company or any
of
its ERISA
Affiliates; no "employee benefit plan" established or
maintained
by the
Company or any of its ERISA Affiliates, if such "employee
benefit
plan" were
terminated, would have any "amount of unfunded benefit
liabilities"
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(as
defined under ERISA); neither the Company nor any of its ERISA
Affiliates
has incurred or reasonably expects to incur any liability
under: (i)
Title IV of ERISA with respect to termination of, or withdrawal
from, any
"employee benefit plan"; or (ii) Sections 412, 4971, 4975 or
4980B of
the Code; each "employee benefit plan" established or
maintained
by the
Company or any of its ERISA Affiliates that is intended to be
qualified
under Section 401(a) of the Code is so qualifie
